Robertson v. King

• Decision Date: 29 November 1898
• Parties: ROBERTSON ET AL. v. KING.
• Court: Alabama Supreme Court

24 So. 929

120 Ala. 459

ROBERTSON ET AL. v. KING.

Supreme Court of Alabama

November 29, 1898

Appeal from circuit court, Cleburne county; George E. Brewer, Judge.

Motion by M. A. King for the amendment nunc pro tunc of a certain judgment in his favor against Z. J. Robertson, by inserting in the entry thereof the names of W. H. Lindsey and G. W Wager, sureties on appeal bond. From the judgment as amended defendants appeal. Reversed.

The appellee, M. A. King, brought an action of detinue against Z J. Robertson and J. W. Lambert, for the recovery of certain specifically described property. The suit was originally commenced in a justice of the peace court, and upon judgment being rendered for the plaintiff the defendants took an appeal to the circuit court, giving an appeal bond upon which W. H. Lindsey and G. W. Wager were sureties. On the trial of the case in the circuit court, the complaint was amended by striking out J. W. Lambert as a party defendant, and the cause was tried with Z. J. Robertson as the only defendant. Judgment was rendered against Z. J. Robertson for the property sued for or its alternate value and for damages for its detention, but no judgment was rendered against the sureties on the appeal bond. This judgment was rendered in the fall term, 1897, of the circuit court. At the spring term, 1898, of said court, the plaintiff made a motion to have the judgment amended nunc pro tunc by inserting therein the names of the sureties Lindsey and Wager. The ground of this motion was that by error they were not included in the entry of the judgment. To this motion the defendants demurred upon the grounds that (1) the motion showed on its face that no judgment was rendered against the sureties; and (2) that it sought to have the judgment now rendered which was not rendered by the court. The court overruled this demurrer and upon the hearing of the evidence the motion was granted and the judgment rendered as prayed for. To each of these rulings the defendants excepted. The other facts of the case are sufficiently stated in the opinion. The defendants appeal and assign as error the rulings of the trial court to which exceptions were reserved.

Merrill & Bridges, for appellants.

James Aiken, for appellee.

HARALSON J.

Motion for the correction of a judgment nunc pro tunc.

The object of a judgment nunc pro tunc is not, as has been well said, the rendering of a new judgment, and the ascertainment and determination of new rights, but is one placing in proper form on the record, the judgment that had been previously rendered, to make it speak the truth,-so as to show what the judicial action really was; not to correct judicial errors nor to supply nonaction by the court, however erroneous the judgment rendered may have been. Dumas v. Hunter, 30 Ala. 188; Browder v. Faulkner, 82 Ala. 257, 3 So. 30.

At common law, courts were not authorized to amend judgments after the close of the term at which they were rendered. Under the statute, they may be amended at a subsequent term, for any clerical error, mistake in the calculation of interest, or other mistake of the clerk, when there is sufficient matter apparent on the record or entries of the court to amend by. Code 1896, § 3334 (2836). The construction of the statute has been liberal; but the requisition is adhered to, that the amendment must be based upon matters appearing of record or of quasi record, not resting in parol. The duty of the clerical officer of the court, is the entry of the judgment the court renders, without reference to whether it is correct or erroneous; but when the judgment rendered is not entered, or the wrong judgment is entered, upon proper evidence the error will be corrected, and the appropriate judgment entered. Whorley v. Railroad Co., 72 Ala. 20; Harris v. Martin, 39 Ala. 556.

The suit in which this motion was made, at a term subsequent to the one at which the judgment was rendered, was commenced before a justice of the peace for the recovery of personal chattels in specie, where a judgment was rendered for the plaintiff. It was carried by the defendants, Robertson and Lambert, on appeal to the circuit court. They executed...